WEST virginia legislature

2016 regular session

Committee Substitute

for

Senate Bill 539

By Senator  Carmichael

[Originating in the Committee on the Judiciary; reported on February 27, 2016.]

A BILL to amend and reenact §54-2-14a of the Code of West Virginia, 1931, as amended, relating to condemnation proceedings; setting forth conditions which must be met; providing the compensation for taking coal, oil and natural gas; clarifying that near-surface minerals are part of the surface estate unless specifically granted to the mineral estate; providing for the inadmissibility of certain evidence; providing for an owner’s interest in the money paid into court; removing refund and reimbursement provisions; and conforming certain language to accepted drafting standards.

Be it enacted by the Legislature of West Virginia:

That §54-2-14a of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 2. PROCEDURE.

§54-2-14a. Alternative method for condemnation by state or its political subdivision.

Prior to any report by condemnation commissioners, or verdict of a jury, if the applicant be the State of West Virginia or any political subdivision thereof, and be otherwise authorized by law to make payment as required in this section, on filing its petition as authorized in this article, and if the court or judge is satisfied that the purpose for which the property or interest or right therein, is sought to be condemned is a public use for which private property may be appropriated on compensating the owner, the applicant may thereupon acquire title to, and enter upon, take possession of, appropriate and use the property, or interest or right therein, sought to be condemned for the purposes stated in the petition by following the method provided in this section

(a) When the following conditions are met, the State of West Virginia or any of its political subdivisions may pursue condemnation actions under this section and acquire title, enter upon, take possession of, appropriate and use the property or interest or right in the property for the purposes stated in the petition:

(1) The state or any of its political subdivisions may institute a condemnation proceeding under this article;

(2) The state or any of its political subdivisions may deposit the amount of just compensation for the property being condemned; and

(3) The court is satisfied that the purpose for which the property or interest or right in the property is sought to be condemned is a public use for which the private property may be appropriated upon compensating the owner.

(b) Before entry, taking possession, appropriation or use, the applicant state or any of its political subdivisions shall pay into court such sum as it shall estimate to be the fair value of the property the fair market value determined by the state or any of its political subdivisions to be just compensation for the property, or estate, right or interest therein in the property, sought to be condemned, including, where applicable, the damages, if any, to the residue beyond the benefits, if any, to such the residue, by reason of the taking.

(c) Coal, oil and natural gas, which are taken concomitant with the public use, shall be compensated for, taking into consideration the mining, production, excavation and marketing costs.  Other minerals encountered, such as limestone, gravel, rock, clay, sand, chalk and all other similar near-surface minerals, shall be compensated for as a part of the surface estate, unless the highest and best use of the property, as a whole, is commercial mineral extraction.  Evidence of the use of any near-surface minerals by the state or any of its political subdivisions is inadmissible in a condemnation proceeding.

(d) The court or judge may, at the request of any party to the proceeding, require the clerk of the court to give an additional bond, adequate to protect such the deposit with the clerk; and if such a bond is required, the applicant state or any of its political subdivisions shall pay the necessary premiums.

(e) Upon such payment into court, the title to the property, or interest or right therein, sought to be condemned, shall be vested in the applicant. and The court or judge shall, at the request of the applicant state or any of its political subdivisions, make an order permitting the applicant state or any of its political subdivisions at once to enter upon, take possession, appropriate and use the property, or interest or right therein in the property, sought to be condemned for the purposes stated in the petition, but the owners of such property, or interest or right therein, at the time of such payment, including lienors and conflicting claimants, shall have such title, interest, or right in the money paid into court as they had in the property, or interest or right therein, sought to be condemned, and all liens by deed of trust, judgment or otherwise, upon such property, or interest or right therein, shall be transferred to such fund in court, subject to the provisions of this section and to deposit the state or any of its political subdivision’s estimate of just compensation with the clerk of the court.

(f) The title in the applicant state or any of its political subdivisions shall be defeasible until the compensation and any damages are determined in the condemnation proceedings, and the applicant state or any of its political subdivisions has paid any excess additional amount awarded into court.

(g) The owners of the property, or interest or right in the property, at the time of the payment, including lienors and conflicting claimants, have the same title, interest or right in the money paid into court as they had in the property, or interest or right in the property, being condemned.

(h) Upon petition to the court or judge, any person entitled thereto may be paid his or her pro rata share of the money paid into court, or a portion thereof of the money, as ordered by the court or judge, but the acceptance of such the payment shall does not limit the amount to be allowed by the report of the condemnation commissioners, or the verdict of a jury, if there be is one. Proceedings for the distribution of the money so paid into court shall be conducted as provided in section eighteen of this article to the extent that the provisions therein in that section are applicable. No A party to the condemnation proceeding shall be is not permitted to introduce evidence of such the payment or of the amount so paid into court, or of any amount which has been accepted by any party, nor shall may reference be made thereto to any payment during the course of the a commissioners’ hearing or trial.

(i) If the applicant shall enter state or any of its political subdivisions enters upon or take takes possession of the property, under the authority of this section, and shall injure damages the property, the applicant shall not be entitled state or any of its political subdivisions may not, without the consent of the defendant, to abandon the condemnation proceeding. for the condemnation thereof, but such proceeding shall proceed The condemnation proceeding shall continue to final award or judgment, and the amount of compensation and any damages as finally determined in such proceeding shall be paid in the manner provided by this section.

(j) When, after payment into court as provided under the authority of this section, the amount allowed by the report of the condemnation commissioners, or the verdict of a jury, if there be one If the amount awarded by the commissioners or jury exceeds the amount which has been paid into court, the excess additional amount, together with interest thereon on the additional amount at ten percent from the date of the filing of the petition to the date of payment of the award of the excess additional amount into court, may, at any time within three months after the report or verdict of a jury, as the case may be, award has been confirmed and ordered to be recorded, be paid into court by the applicant state or any of its political subdivisions for the persons entitled thereto to the additional amount. In no other instance shall is interest be allowed on payments made pursuant to the provisions of this section.

If the amount which has been paid into court pursuant to this section exceeds the amount allowed by the report of the condemnation commissioners, or the verdict of a jury, if there be one, the excess shall be repaid to the applicant out of such fund in court, or, if the amount remaining in the fund be insufficient, then the persons to whom the fund, or any part thereof, has been paid, shall reimburse the applicant, on a pro rata basis, but without interest.

(k) If the applicant state or any of its political subdivisions has the right to abandon the proceeding and does so, the amount which has been paid into court pursuant to this section shall be repaid to the applicant state or any of its political subdivisions from such the fund in court and by any persons to whom the fund, or any part thereof, has been paid, on a pro rata basis, but without interest.

(l) If the amount allowed by the report of the condemnation commissioners, or the verdict of the jury, if there be is one, does not exceed the sum paid into court and it shall appear appears that the latter amount was tendered by the applicant state or any of its political subdivisions to the defendant prior to the institution of the proceeding, the defendant shall pay the costs of the proceeding in the trial court unless the refusal to accept the tender was based on some ground other than that of insufficiency of compensation and any damages.

(m) When the report of the condemnation commissioners, or the verdict of a jury, if there be is one, has been confirmed and ordered to be recorded, and the excess amount, if any, has been paid into court as provided herein in this section, the title to the property or interest or right therein, so in the property paid for shall be is absolutely and indefeasibly vested in the applicant state or any of its political subdivisions in fee simple or to the extent described in the petition: Provided, That in the case of a public road, title to the right-of-way only shall absolutely vest vests in the applicant state or any of its political subdivisions.